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On June 23, 2014, UnitedHealthcare was sued in a new provider class-action for its overpayment recoupment and offset practice, alleging ERISA violations and fraud. The new suit also alleges UHC engaged in withholding or offsetting new payments from providers while misinforming patients.

Overpayment offset and recoupments are Healthcare provider’s No. 1 denial; correspondingly, for self-insured health plans, the No. 1 hidden cost is overpayment recoupment and possible plan assets embezzlement. On June 23, 2014, UnitedHealthcare (UHC) was sued in a new provider class-action for its overpayment recoupment and offset practice for alleged ERISA violations and fiduciary fraud. The new ERISA class-action suit alleges:

UHC has been withholding or offsetting new payments in part or in whole from providers from one patient to satisfy another alleged overpayment in the past from other unidentified patients in violation of ERISA;

UHC then misleads patients and the plan sponsors as to payments made to the providers;

UHC has never complied with ERISA claims regulation when requesting alleged overpayments and offsetting new payments from other patients.

The new putative class on behalf of all similarly situated providers is seeking for ERISA benefits payments due, injunctive and declaratory relief, and ERISA notice and appeal rights.

“The No. 1 health care claim denial in the nation is payer overpayment recoupment and offset practice that does not comply with ERISA rules. These offsets can go as far back as several years and affect all types of claims, potentially resulting in inevitable provider bankruptcy and subsequent patient bankruptcy”, according to Dr. Jin Zhou, president of ERISAclaim.com, a national expert on ERISA compliance and appeals.

Significantly, this ERISA putative provider class-action for the “Offset Class” was filed in the wake of and in accordance with a similar provider class-action filed recently in New Jersey for the “Recoupment Class”: Case Info: Premier Health Center, P.C., et al. v. UnitedHealth Group, et al., Case#: 2:11-cv-00425-ES-SCM, Filed 08/01/13, United States District Court for The District of New Jersey.

In last year’s court decision the court ruled against UHC in its overpayment recoupment practice: “To be sure, as previously discussed, United’s recoupment procedures violate three specific ERISA regulations across the class.” according to the court document. “In 2011, United recovered approximately $430 million in overpayments to providers. 58% of the $430 million was recovered as a result of providers’ voluntarily sending a check to United, while 42% was recovered through offsets”, according to the court document. “However, they all violate ERISA in three respects. First, they fail to provide “[a] description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring acivil action under section 502(a) of [ERISA] following an adverse benefit determination on review.” 29 C.F.R. § 2650.503-1(g)(1)(iv).25 Second, they fail to indicate that the provider, “upon request and free of charge, [will have] reasonable access to, and copies of, all documents, records, and other information relevant to the” overpayment determination. 29 C.F.R. §2650.503-1(h)(2)(ii). Third, they fail to “[p]rovide claimants at least 180 days following receipt of a notification of an adverse benefit determination within which to appeal the determination.” 29 C.F.R. § 2650.503-1(h)(3)(i).” according to the court document.

In the new UHC provider class-action, healthcare providers alleged additional ERISA violations by UnitedHhealthcare Group for withholding and offsetting newly adjudicated claim payments from one patient to satisfy another alleged overpayment in the past from other unidentified patients which in some cases are members of a completely separate plan, in violation of ERISA.

Additionally, the new lawsuit alleges that UHC misled patients and the plan sponsors on patient EOB’s that indicated “payment made to provider”, when in truth and in fact no such payment was ever made to the providers, according to the Court Complaint.

In particular, the plaintiff Lutz Surgical Partners alleged the following:

“For example, ……Instead, United identified a different United Insured covered by a different United Plan who had been treated by Lutz on December 16, 2012. According to the PEOB, United caused that United Plan to pay Lutz $19,460.00 for this treatment which was now characterized by United as the “ORIGINAL OVERPAYMENT AMOUNT.” The PEOB then explained that the entire amount owed to Lutz for the services provided to the June 12, 2013 patient ($2,700.00) was being unilaterally offset against the prior alleged overpayment relating to the December 16, 2012 patient ($19,460.00), with the added explanation that “THIS REPRESENTS PREVIOUS BENEFITS THAT WERE PAID IN ERROR.” United therefore reported that the “TOTAL PAID TO THE PROVIDER” for services rendered to the June 12, 2013 patient was $0.00. In the “REMARKS” section of the PEOB, United stated: “The amount payable for this Explanation of Benefits has been used to reduce an overpayment made on the given claim(s). Please adjust your patient account balance accordingly.” according to the court document.

As more and more of these cases make their way through the courts, it is clear that the questionable or “legal gray area” of overpayment recoupment practices engaged in by many of the nation’s biggest insurance carriers, effectively triggers ERISA appeal rights. Insurers and Health Plans will be forced to comply with all applicable federal laws, ERISA and PPACA claims regulations, as well as statutory fiduciary duties before recouping one single dollar. Providers or patients that face UHC or any payor recoupments or offsets would do well to understand the implications of these lawsuits as well as their rights under ERISA.

United has had a clinical review with their Integrity Department and as a result I have to pay them back $20K for apparently not having a signature on the documentation [which there is. Not sure what their definition of signature is] and for billing error of 60min sessions vs 45 mins. And not knowing which clinicians rendered services. is there someone whom i could consult with? I have to respond to United w payment in 25days. I just left a message with and waiting for them to call back. Sincerely, BN